Bankruptcy Works!

My wife wanted to go shopping at the Burbank Mall yesterday. I told her to have fun but that did not work.

After we worked up an appetite, we headed to the food court. While she ordered food, I headed over to Hot Dogs on a Stick. There was a moderate line, good. I was given a free hush puppy to try and when I inquired about their ice drinks, I was given a nice size sample. Delicious.

For those of you that are not familiar with Hot Dog on a Stick, here is an excerpt from the website:

An American Icon since 1946, Hot Dog on a Stick™ is an amazing company that began as the entrepreneurial dream of Dave Barham. What began as a small beachfront store in Santa Monica has grown to over 100 locations in 11 states, as well as worldwide locations in Dubai, Guam, Korea, and Brazil! And that beachfront store in Santa Monica is STILL serving our famous food and lemonade to beachgoers today!

Hot Dog on a Stick™ has stayed true to its roots by still serving our original lemonade and hot dogs on a stick, and has grown to include cheese on a stick, French fries, funnel cake sticks, and even Nathan’s Famous beef hot dogs! Today’s menu still offers our original delicious products, that are still made fresh, to serve our hungry, loyal customers.

Hot Dog on a Stick™ serves the finest products, with the friendliest customer service around. Our employees are known for their cheery smiles, bright uniforms, and of course, the striped hat!!

And this is what it looks like:

HDOS

 

What does this have to do with anything? Hotdog on a Stick is HDOS Enterprises. It filed a voluntary Chapter 11 Bankruptcy Petition on February 3, 2014 with the Friedman Law Group serving as its general counsel and under the watchful eye of Judge Bason [bankruptcy case no. 2:14-bk-12028].

On August 11, 2014, just 189 days later, an order was entered Authorizing the Sale of Substantially all of the Debtor’s Assets Free and Clear of All Liens, Claims, Encumbrances and Interests to HDOS Acquisitions, LLC; (2) Authorizing Assumption and Assignment of Unexpired Commercial Leases and Various Executory Contracts; (3) Determining the Amounts Necessary to Cure Such Unexpired Commercial Leases and Various Executory Contracts; and (4) Granting Related Relief.

The case was closed on January 8, 2015.

It took less than a year from start to finish. So what was accomplished? I spoke to Summer at the cash register. She has been with the company for over three years. She says she believes the bankruptcy improved the work environment. She mentioned when the bankruptcy was announced, there was a rush from customers who wanted to eat the food, thinking it may be their last chance. More importantly, she mentioned that the company was considering expanding into the east coast. She may be picked as one of the people who is flown over to train new employees and was generally very excited (she even did a quick twirl and yelled “New York, here I come!”).

HDOS expanded too quickly into expensive leases at large malls that were opening all across the mid-west. When the Great Recession hit, it faced declining revenues but was stuck with significantly above market leases. Its landlords wouldn’t negotiate because HDOS was a solvent company. Recognizing that it could not sustain itself, it filed bankruptcy. Now it’s a thriving company. Bankruptcy works. 

[Note: Outside of bankruptcy, breach of these leases would have resulted in very large breach of contract judgments which would have choked the company. The bankruptcy not only demonstrated to landlords that HDOS was serious and caused many landlords to “voluntarily” renegotiate leases, it also provides a cap to the amount of damage that a landlord is entitled to and further caps that exposure because unsecured creditors don’t necessarily have to be paid in full.]

Basic Introduction to Unsecured Creditors’ Committee

This article is a quick introduction to unsecured creditors’ committees.

When an individual or company files bankruptcy, there are generally two routes it can take (for the purpose of this discussion, Chapter 13, a limited form of reorganization for individuals, is omitted.)

The first route is Chapter 7 liquidation where assets are liquidated for payment to creditors.

A Chapter 7 bankruptcy is structured as follows: a Chapter 7 Trustee is appointed; the trustee is a professional whose job is to maximize the value of the assets (referred to as the Estate) and to pay creditors as much as possible. The Department of Justice oversees the Chapter 7 Trustee. Creditors may participate in this process but since the Chapter 7 Trustee is a professional, experienced and neutral, the role of creditors is limited. They may seek to protect themselves but generally stay out of the Chapter 7 Trustee’s business.

The second route is Chapter 11 reorganization where assets are either liquidated to pay creditors or the company/individual’s debt is restructured and a payment plan is formulated where creditors are repaid some portion of their claims.

The major difference is that upon commencement of a Chapter 11 bankruptcy, a professional trustee is not appointed to the case. The company’s management remains in control as “debtor-in-possession” (called a DIP) with virtually all the powers and responsibilities as a professional trustee. The Department of Justice continues to oversee the DIP but creditors are allowed to, and should monitor the case more closely since the individuals responsible for the company’s financial situation continue to operate it.

Congress realized that if individual creditors each have to monitor the Chapter 11 case, the cost to each creditor will be burdensome. Furthermore, having 150+ creditors’ attorneys in a single hearing would be impractical.

To solve this problem, the Unsecured Creditors’ Committee was invented. The Committee is supposed to represent a cross section of unsecured creditors. However, most of the time, it is comprised of the three to seven creditors who hold the largest claims. The idea is for the Committee to be the voice of all unsecured creditors so smaller creditors are allowed to be committee members if the Department of Justice believes it is proper. Since a committee provides significant judicial economy and operates as an additional watchdog over the Debtor, Congress decided that the Debtor should pay for the Committee’s attorneys, accountants and other professionals.

Postconfirmation Subject Matter Jurisdiction of Bankruptcy Courts

A trend among Chapter 11 practitioners over the last ten years has been to use general provisions in the Plans of Reorganization they draft. They copy and paste these provisions in all their Plans, close their eyes and hope for the best.

One of those clauses is this “retention of jurisdiction” clause. Some practitioners have a bland one, “The Court shall retain jurisdiction to the maximum extent possible under the law.” To me, that means nothing. The problem is this clause is not helpful. It doesn’t tell the court specifically what it’s allowed to do and not allowed to do, inviting litigation over this issue before the merits are even considered!

So other practitioners responded to this problem by listing a litany of situations where they would like the court to retain jurisdiction, for example:

After confirmation of the Plan and occurrence of the Effective Date, in addition to jurisdiction which exists in any other court, the Bankruptcy Court will retain such jurisdiction as is legally permissible including for the following purposes:

  • To resolve any and all disputes regarding the operation and interpretation of the Plan and the Confirmation Order;
  • To determine the allowability, classification, or priority of claims and interests upon objection by the Debtor, the Reorganized Debtor, or by other parties in interest with standing to bring such objection or proceeding;
  • To determine the extent, validity and priority of any lien asserted against property of the Debtor or property of the Debtor’s estate.
  • To construe and take any action to enforce the Plan, the Confirmation Order, and any other order of the Court, issue such orders as may be necessary for the implementation, execution, performance, and consummation of the Plan, the Confirmation Order, and all matters referred to in the Plan, the Confirmation Order, and to determine all matters that may be pending before the Court in this case on or before the Effective Date with respect to any person or entity related thereto;

… this thing goes on for pages and pages. While slightly helpful, some judges won’t allow these clauses into the Plan, but for those that do, case law has demonstrated they are also not very good.

The main situation where the problems arise is in situations where the Debtor is trying to preserve litigation rights. The Plan wiped away the rights of others to sue the Debtor but retained Debtor’s right to sue and do so in Federal Bankruptcy Court!

A few months ago, the District Court for the Eastern District of North Carolina joined the 3rd Circuit, 4th Circuit, and 9th Circuits in invalidating these clauses in so far as they purport to retain jurisdiction for the bankruptcy courts to decide these cases.

Practitioners need to tailor the retention of jurisdiction clause to fit the needs of each client on an individual basis. The first start is to explicitly list the potential litigation matter and the second step is to tie recovery of that litigation to payments due under the Plan. This is not only easy to do but a must for those of us who wish to save our clients the further headache of litigating jurisdiction!

For further reading, the seminal 9th Circuit case on this topic is: In re Pegasus Gold Corp., 394 F. 3d 1189 – Court of Appeals, 9th Circuit 2005

Tactical Use of Bankruptcy when a Lis Pendens is Recorded

On June 2, 2015, the California Court of Appeals issued a decision where it reversed the Superior Court’s decision to grant priority to a judgment lien recorded by a party after a lis pendens was recorded by a different party. While some nuances about the interaction of fraudulent transfer judgments and lis pendens were discussed, the result appears to be correct and is certainly fair.

Delving into the facts, it appears the following scheme was stopped:

Husband defrauded “ex-wife” by hiding assets in a company called BTM. BTM transferred this property to third parties without the knowledge of ex-wife or creditors. Creditors later recorded a lis pendens and proceeded to trial. Meanwhile ex-wife proceeded to trial for essentially the same thing.

While Husband stalled creditors, he stipulated to judgment with ex-wife. AHA! Ex-wife recorded her abstract of judgment which became a second priority lien against the property. At the time of the appeal, Husband and ex-wife had rekindled their love and were married! This is a brilliant strategy for husband. He obtained the benefit of the loans made by creditors but the creditors now stood to receive nothing as the wife’s lien left them wholly unsecured.

Since the Court of Appeals reversed, the priority of the second judgment related back to the date the lis pendens was recorded thereby moving the creditors’ secured status up a notch resulting in the creditors being in second position and the ex-wife being in third position.

This scenario got me thinking. What would have happened if after ex-wife recorded her abstract of judgment, husband filed for bankruptcy? (Assuming no preference problems.)

On the petition date, the bank would have a secured first priority lien, the ex-wife a secured second priority lien and the creditors would have an unliquidated, disputed potential judgment for $21,000,000.

One course of action would be for the property to be sold, the lienholders to be paid and for any remaining proceeds to be paid to the creditors. This result would be contrary to what happened in state court. This is what the schemer’s apparently wanted to happen.

The other course of action would be to allow the creditors to proceed to judgment, then allow them to record an abstract of judgment thereby making them secured.

But what happened to fixing the rights of creditors as of the petition date? You can find a copy of the state court case here.

Does an annuity inherited by a spouse constitute “retirement funds” within the meaning of § 522(b)(3)(C)?

For the purpose of this blog, I am going to assume that the annuity in question would be exempt had the decedent been alive.

At first, I thought the answer was simple:

Assuming the annuity was a retirement fund to begin with, the answer is yes, it continues to be a retirement fund because under the IRC, an inherited retirement fund is NOT treated as “inherited” if the spouse is the person who inherited it. That is in 28 U.S.C. 408(d)(3)(C)(ii)(II), quoted for convenience:

(ii)Inherited individual retirement account or annuity An individual retirement account or individual retirement annuity shall be treated as inherited if—

(I)the individual for whose benefit the account or annuity is maintained acquired such account by reason of the death of another individual, and
(II)such individual was not the surviving spouse of such other individual.
Looking at Clark v. Rameker, the Court says, “If the heir is the owner’s spouse, as is often the case, the spouse has a choice: He or she may [1] “roll over” the IRA funds into his or her own IRA, or he or she may [2] keep the IRA as an inherited IRA (subject to the rules discussed below).” The parenthetical suggests that either one of two things must happen: the Debtor has gone with route [1] and the annuity is exempt or has gone with route [2] and it is not exempt.

Debtor may also have an argument that the annuity is community property to the extent the res in the annuity was funded by community funds and is therefore, at least half his even if title is completely in the wife’s name. I am not sure if this argument is persuasive.

To top it off, not all annuities are exempt! So the inquiry should start there.

Meet the New Face of the IRS in the Central District

Last Saturday I attended the CDCBAA CLE on “Handling Tax Debt Dischargeability and Bankruptcy Tax Disputes.”

The speakers were Judge Kwan, Arnold H. Wuhrman, Esq. of Serenity Legal Services, P.C., and assistant U.S. Attorneys Robert F. Conte, Esq. and Najah Shariff. Judge Saltzman and Judge Houle’s former law clerk, Jolene Tanner also made a special guest appearance. Najah and Jolene are the two new faces of the IRS. They will have the primary responsibility for all bankruptcy related litigation in the entire Central District of California.

img_41081
(from far left to right: Jolene Tanner, Robert Conte, Najah Shariff, Judge Kwan, and Arnold H. Wuhrman)

A lot was learned but a few tips which and reminders I found interesting:

Most attorneys file a power of attorney so they can access their client’s transcripts. This makes them general counsel before the IRS/tax court with respect to representation of their client. It also subjects them to particular tax related standards. An alternative is to file a for 8821 which is a tax information authorization request. Click here for a copy.

Not paying taxes, by itself, is not fraud. Even if you know you have a huge tax burden accruing and you don’t file taxes, that’s not fraud because the 9th Circuit has said there needs to be specific intent. The IRS will need to prove the intent by the preponderance of evidence. It appears their case in chief will be to look for some indicia of intentional tax evasion. They are looking for an affirmative act. Examples include: opening new bank accounts, purchasing property under someone else’s name, or moving some money out of the country.

Apparently there is a case out there that says a Trustee cannot sell property subject to a tax lien if general unsecured creditors will not be paid a dime. More on that in a future blog but that can’t be, can it!?

Finally, Judge Kwan said that lawyers and judges are a lot like professional golfers, they are always working on their game.

I agree. This is particularly important for us younger attorneys. If the guy with 30 years of experience is attending 1 hour of CLE per month, we should be attending 3-5 hours per month! How else are you going to catch up to that guy or stand toe to toe with him in court? I guess you can wait 30 years!

Finally, a plug for the CDCBAA. The CDCBAA provides 16 hours of CLE per year through 8 events for $250. That is $31.25 per event + $10 for parking. You also get a free ticket to the Calvin Ashland Awards Dinner and access to its listserv where many seasoned attorneys will answer bankruptcy related questions. The listserv is saved so that all prior posts can be browsed through, this is a great resource. On top of that, you get to meet excellent attorneys. I highly recommend it.

Wise Words by the Honorable Sheri Bluebond, Chief Judge!

My good friend Paul McCullum was sworn in today by none other than the Chief Judge of the Central District Bankruptcy Courts, the Honorable Sheri Bluebond. His family flew over from Indiana to watch him take the oath. It was a tremendous occasion and I was honored to be invited. The best part was Judge Bluebond’s moving pre-Oath “advice to new lawyers” which contains sage advice for practitioners of all seasons. With her permission, I am happy to share:

             Notwithstanding all the lawyer jokes you’ve heard, the practice of law is still a noble profession – and one that will challenge you on so many levels.  To excel in this profession, you need a variety of skills.  Others may have their own lists, but I’ve given it some thought and here are the qualities that I think will be among the most important for your future success:

–Integrity:  The importance of integrity cannot be overstated.  Particularly in a relatively small practice area like bankruptcy where everyone knows everyone else, pay particular attention to the reputation that you establish for yourself.  If people know you to be honest and forthright and true to your word, it will be far easier for you to conduct business.  People (and judges, who are people too) will give you the benefit of the doubt.  On the other hand, if people know you that you are comfortable playing fast and loose with the truth, even the smallest of accomplishments will be immeasurably harder.

And in order to maintain your integrity, it would be a good idea to learn how to say “no” and mean it.  Not only to the client who wants you to advance an argument that isn’t well founded in law or fact or doesn’t pass the giggle test, but also to the partner who hasn’t read the cases or done the factual investigation and thinks a particular argument will fly that your gut tells you is misguided.  You’ll be the one who’ll end up with egg on your face when you let someone else talk you into doing something that is ill-advised.  So learn how to stand your ground.

–Intellectual curiosity:  Much about the practice of law will be mind-numbing unless you genuinely enjoy learning new things and solving intellectual puzzles.  Moreover, unless you are willing to devote the energy necessary to correctly untie the legal knots that clients find themselves in, you will be forever tempted to take the shortcut or ignore or gloss over important issues that may at first blush appear trivial but can turn out to be the difference between obtaining the result your client needs and committing malpractice.

–A good sense of humor:  Things will not always turn out the way you might hope.  If you can’t have a laugh now and then — even though sometimes it’s that kind of a giggle you can’t help doing at a funeral — life can become dreary indeed.  But be careful who’s watching while you’re laughing.  However funny something may seem to you, clients may often fail to see the humor in their predicaments.

–Stamina:  Stay healthy.  Get enough sleep when you can.  Eat right.  And exercise.  Visit your doctor regularly.  Some cases will feel like a sprint.  Others will feel like a marathon – or a series of marathons.  You need to be able to go the distance.

 –Good organizational skills:  Knowing what you have to do, and when you have to have it done by, will reduce your stress levels.  Make sure you have some system for keeping track of everything you need to do, both personally and professionally.  You’ll have enough on your plate without having to worry about whether or not you’ve remembered everything that’s supposed to be on your plate.

–Good written and oral advocacy skills:  Put your best foot forward.  Clients, opposing counsel, partners in your firm, judges — they will all judge you based on how well you write and how well you speak.  If you have trouble with either of these, practice, and take training courses if necessary.

Those are some of the things you’ll need to succeed in your career, but what good is career success if the rest of your life sucks – or there is no “rest of your life?”  You don’t want to wake up in 10 or 20 years and wonder what happened to you.  You need to take good care of your clients, but you need to make time for yourself too.  You know what they say on the airplane — when the oxygen masks fall from the ceiling, you have to put on your own mask first or you won’t be in any shape to help anyone else.

And don’t forget to check in with yourself now and then – you need to stop periodically and evaluate how your life or your career is going, decide whether you’re satisfied with what you see and, if not, make a change.  Hopefully, you will be fortunate enough to find great coworkers and mentors, but, at the end of the day, only you are in charge of your own life.  You are the master of your own destiny and career.  You are the architect of your own life.  Don’t abdicate that responsibility to anyone else.  Life is what happens to you while you’re busy making other plans, so remember to peek over the blinders now and then and check out the scenery.  Make sure you like what you see.

Listen to yourself.
Follow your heart.  It won’t steer you wrong.

Can I Sue My Attorney For Failing To Object To A Bogus Lien?

We all know the general statute of limitations for suing attorneys is within after one year of discovering the facts constituting the wrongful act or within one year of when the client should have discovered the facts constituting the wrongful act through the use of reasonable diligence but never more than four years from the date of the wrongful act or omission. See Code Civ. Proc. § 437c.

The limitations period is tolled if, among other reasons, the plaintiff has not sustained an actual injury or if the attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred. See Code Civ. Proc. § 340.6.

In the scenario discussed today, the attorney forgets the deadline to file an objection to a bogus lien. Because of the missed deadline, the client hires a different firm and ultimately agrees to accept $1.6 million less than it would otherwise have received.

The problem is even though the client knew his former attorney missed the deadline to object to the bogus lien, he waited over a year, until after the $1.6 million hit, to file a malpractice action. So is the malpractice action timely since the client had not sustained an actual injury?

The California Court of appeals said it was untimely because what matters is “discovery of the fact of damage, not the amount.” (Laird v. Blacker (1992) 2 Cal.4th 606, 612 (Laird);

As long as that amount is more than nominal, actual injury exists even if the client has yet to sustain all, or even the greater part, of the damages occasioned by his attorney’s negligence. Even if the client will encounter difficulty in proving damages and even if that damage might be mitigated or entirely eliminated in the future. This is because an existing injury is not contingent or speculative simply because future events may affect its permanency. However, actual injury does not exist where the attorney’s negligence may have created only the potential for future harm.

The Court found two reasons for the existence of an actual injury. First, the loss or diminution of a right or remedy constitutes injury or damage. In this case, the right to challenge the lien was the loss of a right. Second, the absence of the ability to challenge the lien substantially weakened plaintiff’s negotiating position in the ensuing mediation, and the loss of considerable settlement value also constitutes an actual loss.

The full case can be found here.

California Supreme Court Overrules 50 Year Precedent Regarding Unambiguous Wills

Irving Duke prepared a holographic will providing that, upon his death, his wife would inherit his estate and that if he and his wife died at the same time, specific charities would inherit his estate.

This will is not ambiguous, there are two options here: Option 1, when Irving dies, his wife will inherit his estate. Option 2, if they die at the same time, specific charities will inherit the estate.

What about Option 3? What if his wife dies before he dies? That is not covered by the will and so the will is not applicable to this situation and must be disregarded.

The California Supreme Court rejected this argument. Despite being unambiguous, it ruled that an unambiguous will may be reformed if clear and convincing evidence establishes that the will contains a mistake in the expression of the testator’s intent at the time the will was drafted and also establishes the testator’s actual specific intent at the time the will was drafted.

Author’s comment: Last week, SRH was discussing the validity of oral operating agreements in Delaware when Jon Hayes made a mind blowing statement, “Remember, the piece of paper is never THE CONTRACT. It is always evidence of the promises the parties made to each other which is THE CONTRACT.” Wait, so this piece of paper is not the contract? It is only evidence of our mutual understanding? Then it makes sense to allow other evidence in to support whatever the parties purport their understanding or intent was.

The conservatives would say this is a contradiction because if the written document is not ambiguous, it is not only evidence of the parties’ understanding but it is conclusive evidence of their understanding. The reason this logic is flawed is because I can write something that is not ambiguous thinking it meant something else. If you accept this, then an unambiguous contract only shifts the burden to the other party to overcome what is written with clear and convincing evidence.

You can read the full opinion here.

An entertaining footnote about metaphors!

This is footnote 2 from Official Committee v. Integrated Res., Inc. (In re Integrated Res., Inc.), 147 B.R. 650, 662 n.2 (S.D.N.Y. 1992):

The Supreme Court has warned that “[c]atch words and labels . . . are subject to the dangers that lurk in metaphors and symbols, and must be watched with circumspection lest they put us off guard.”United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 253, 109 S.Ct. 1026, 1036, 103 L.Ed.2d 290 (1989) (citing Henneford v. Silas Mason Co., 300 U.S. 577, 586, 57 S.Ct. 524, 528, 81 L.Ed. 814 (1937)). Nevertheless, courts seem to enjoy framing bankruptcy issues in colorful, but misleading, metaphor. For example, the term “stalking horse” has appeared in a variety of odd contexts. See, e.g.,In re El Paso Pharm., Inc., 130 B.R. 492, 496 (Bankr.W.D.Tex. 1991) (“[t]he jury issue thus turns out to be a stalking horse”); In re Louis Fleet, 122 B.R. 910, 917 (Bankr.E.D.Pa.1990) (rejecting a “last ditch effort” of a debtor to use “his wife as a stalking horse”).

Bankruptcy cases teem with other mixed and maltreated metaphors. See, e.g., United States v. Nelson,969 F.2d 626 (8th Cir.1992) (“trustee here was attempting to `gouge substantive congressional-given rights from the eyes of debtors’”); Reynolds v. Comm’r of Internal Revenue, 861 F.2d 469, 472-73 (6th Cir.1988) (“Emerson’s dictum that `a foolish consistency is the hobgoblin of little minds’ cuts no ice in this context.”).

Food-related metaphors are common. See, e.g., In re Central Ice Cream Co., 114 B.R. 956, 960 (D.N.D.Ill.1989) (referring to the bankruptcy judge’s metaphor of the “egg” of conflict); In re Jeffrey B. Stone, 119 B.R. 222, 234 n. 18 (Bankr.E.D.Wash.1990) (“An appropriate, if informal metaphor, is to compare the exemption to a wedge of Swiss cheese.”); In re Charles Richard Snow, 92 B.R. 154, 158 n. 3 (D.W.D.Va. 1988) (extending the Swiss cheese metaphor to “argue that the wedge of Virginia cheese contains too high a ratio of holes to cheese”); C.I.T. Corp. v. A & A Printing, Inc., 70 B.R. 878, 882 (D.M.D.N.C.1987) (“The familiar metaphor of a pie is instructive.”); In re Tri-Cran, 98 B.R. 609, 620 (Bankr.D.Mass.1989) (learning “through the grapevine” in the cranberry industry).

Zoological metaphors abound. See, e.g., In re Financial News Network, 126 B.R. at 154 n. 5(conferring the title “tethered goat” on a break-up fee recipient); Mellon Bank v. Metro Communications,945 F.2d 635, 646 (3d Cir.1991) (“the target firm may not at all reflect the Elizabethan deadbeat, but may in fact wind up as the sacrificial lamb”); In re Universal Profile, Inc., 5 B.R. 572, Bankr.L.Rep. (CCH) ¶ 67,696 (N.D.Ga. 1980) (“This court is not favorably inclined toward making [the subsidiary] a sacrificial lamb for its parent company.”); In re Willie Charles Jones, 105 B.R. 1007, 1012 (D.N.D.Ala.1989) (remarking that “`Chapter 26′ . . . is an animal as different from `Chapter 20′ as an elephant is from a giraffe”); In re Assembled Interests Corp., 117 B.R. 31, 32 (Bankr.N.H.1990)(acknowledging that “calling an elephant a giraffe does not make the animal any less an elephant,” but also noting that “[t]his is an obvious but irrelevant truth”); In re Robert James Johnson, 80 B.R. 953, 962 (Bankr.D.Minn.1987) (“This test is popularly phrased via the fine, homely folk adage of `The pig gets fattened, but the hog gets slaughtered.’”); Dolese v. United States, 605 F.2d 1146, 1154 (10th Cir.1979) (employing a variant: “There is a principle of too much; phrased colloquially, when a pig becomes a hog it is slaughtered”); In re Donald J. Falconer, 79 B.R. 283, 289 (D.W.D.Mich.1987)(suggesting the allegory of counting and burying cattle to explain the “ontological demise” of cattle which “disappeared in almost `Orwellian fashion’ [and] became, in a word, `uncattle’”).

The reference to Orwell is particularly jarring because that author, a master of the language, warned against the use of stale metaphors as a substitute for clearly expressed thought. IV The Collected Essays, Journalism and Letters of George Orwell 127-40, esp. 130 (Sonia Orwell and Ian Angus, eds. 1968).